Sligo Furnace Co. v. Coombs

239 S.W. 816, 292 Mo. 530, 1922 Mo. LEXIS 222

• Court: Supreme Court of Missouri
• Decided: March 14, 1922
• Status: Published

Opinion

JAMES T. BLAIR, J.

This is an appeal from a judgment for plaintiff in an action it brought under Section 1970, Revised Statutes 1919, to quiet title to certain lands in Iron County. Both parties claim under John Kost. Plaintiff claims by mesne conveyances from purchasers under judgment for taxes against Kost and others, and defendants are the heirs of Kost.

Statement. Dr. John Kost lived in Michigan and was the record owner of the land in suit as early as 1870. In 1880 a suit against him and others was brought for the ^axeg on ¡ailc[ for the years 1868 to 1878, inclusive. The order of publication was in due form. It described the land and named John Coombs, Orlando Yan Hise and John Kost “and all unknown interested parties” as defendants. This order was published as the law required. It notified the defendants to appear on the fourth Monday in October, 1880. In the records of the Iron County Circuit Court there appeared a judgment as of date November 3,1880, in favor of the same plaintiff named in the order of publication and against the same defendants for taxes for the same years on the same land. November 3,1880, was the seventh day of the October term, 1880, for Iron County. This judgment was for $35.44 and costs. The tax files were lost. A tax deed was put in evidence. It recited a sale under a judgment “rendered October 30, 1880.” It further recited the names of the plaintiff and defendants, the years for which the taxes sued for had accrued, the description of the land and the total amount of the taxes for which judgment was rendered, and these all agree with the corresponding recitals in the judgment which had been offered except that in the recital of the names of the judg-' ment defendants “John Kast” was named in the deed instead of “John Kost.”

Publication: Name. T. It was admitted that “Dr. John Kost” was the record owner, and it is suggested that the publication and judgment against “John Kost” are not good as against “Dr. John Kost.” Even if the “Dr.” could be held more than a mere title and no part of the name for the purposes of service by publication (Feld v. Loftis, 240 Ill. 105; Uihlein v. Gladieux, 74 Ohio, 232; Gerahty v. State, 110 Ind. 103; Simpson v. Dix, 131 Mass. 179; Prentiss v. Blake, 34 Vt. 460), yet an admission that Dr. John Kost is the record owner does not, particularly in view of the trial court’s finding, imply that he took title to the land except as John Kost. The point is ruled against appellants.

Tax Deed: Defendant's Name Misspelled. II. The tax deed mispelled the judgment defendant’s name in one letter. It is conceded the order of publication was correct in its spelling, and it is conceded the same thing is true of the judgment. It is clear the sheriff’s deed fully identifies the judgment under which the sale which it consummated was made and that the judgment so identified was rendered against John Kost. It is undisputed that the sale was made under this judgment and necessarily implied that the special fieri facias ran against the land of the judgment defendants. Even had it misspelled Kost’s name as the deed did, that would not have rendered it void if, as we must on this record presume, it was otherwise good and properly identified the judgment. In such circumstances it would have been amend able if presented to the Iron County Circuit Court, and would have to be treated as .amended if presented to another court. [Dewey v. Peeler, 161 Mass. 135; Stout v. Railroad, 64 W. Va. 502.] “Where sufficient appeared on the face of the execution to connect it with the judgment, courts have frequently disregarded variances in the names of parties, in the date or in the amount of the judgment.” [Quoted from Freeman on Judgments, sec. 43, p. 113, n. 3, in DeLoach v. Robbins, 102 Ala. l. c. 294.] If the writ is amendable, it will be accorded, in another court, the same effect as if it had been amended. [DeLoach v. Robbins, supra; Anderson v. Gray, 134 Ill. 550; Corthell v. Egery, 74 Me. 41; Sabin v. Austin, 19 Wis. 421; Graham v. Price, 3 A. K. Marsh, l. c. 523; Alexander v. Miller, 18 Tex. 893; Stewart v. Severance, 43 Mo. 322.] So far as the present question in the instant case is concerned, the facts‘Which appear and the presumptions which must be indulged show that the sheriff sold under a valid fieri facias issued upon a valid judgment against John Kost. Appellants are the heirs of Kost and no rights of third parties have intervened. Neither have appellants been misled in any way, not even to the extent that they have so much as paid taxes since the sale. In any event the deed was amendable as against Kost and is amendable as against appellants or their privies, should they sell. [Smith v. Vickery, 235 Mo. l. c. 422.] This is not a case in which the wrong defendant has been named in the publication, or the judgment rendered against one not a defendant, or an execution issued against one not á judgment defendant, or the land of one other than the owner and judgment defendant sold. The facts are just to the contrary. The reference in the deed to the judgment clearly identifies it and makes it a part of the deed for all purposes. When this is considered the name “Kost” is as much a part of the deed as the word “Kast” which appears therein. The premises all. considered, we hold the deed as written, together with the proceedings which,are a part of it.by reference, sufficiently shows that “Kost” was intended and that the inadvertent spelling “Hast” was merely a clerical misprision. • [Morrison v. Turnbaugh, 192 Mo. l. c. 445, 446.] Further there is authority which supports the view that the two names are idem sonans. The judgment is affirmed.

All concur, except Woodson, J., who dissents.